Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No. MHCC01-001752-2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.240 OF 2018
IN
S. C. SUIT NO.3021 OF 2012
(HIGH COURT SUIT NO.770 OF 2012)
VAY LIFE SCIENCES PVT.LTD. ]
A Private Limited Company having its ]
Registered Office at 51/B, Mittal Court, ]
224, Nariman Point, Mumbai – 400 021 ] ...Plaintiff
Versus
1. M/s. DARSHAN CHEMICALS ]
A firm / concern carrying on business at ]
Plot No.A/39, T.T.C. Industrial Area ]
Behind Relince Silicons, Near to O.H.C.S., ]
M.I.D.C., Pawane, ]
Navi Mumbai. ]
2. Mr. DARSHAN OZA, Proprietor/Partner ]
Carrying on business in the name and ]
style of M/s. Darshan Chemicals as a ]
proprietorship concern and / or firm ]
at the address of defendant No.1 above. ]
3. MR. VATSAL, son of Darshan Oza, ]
partner of firm M/s. Darshan Chemicals ]
at the above mentioned address. ]
4. The New India Assurance Company ]
at 87, M.G. Road, Fort, Mumbai – 01. ] ...Defendants.
M
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Appearances :-
Adv. Mr. R. M. Kedia for Plaintiff.
Adv. Nidhi Singh for defendant Nos. 1 to 3.
Adv. Punam Mittal for defendant No.4.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 9th September, 2020
ORAL ORDE1R
1. The Plaintiff filed this Chamber Summons under Order 39
Rule 11 of CPC for non-compliance of order dated 30.06.2016 passed
below Exh.8.
2. Perused chamber summons, affidavit in support of chamber
summons, affidavit in reply on behalf of defendant No.1 to 3 to the
chamber summons, affidavit in reply of defendant No.4 and rejoinder of
plaintiff in reply of the defendant No.4.
3. Heard Learned Advocate Mr. R .M. Kedia appearing for
plaintiff and Lerned Advocate appearing for defendant No.4.
4. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No.
POINTS FINDINGS
1. Whether defense of defendants can be
strike out under Order 39 Rule 11 of CPC
as prayed for ?
In the negative.
2 What Order ? Chamber Summons is
dismissed, as per final
order.
REASONS
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As to point Nos.1 & 2:
5. In brief, it is contention of the plaintiff that defendant No.4
did not comply the order of the Court and thereby defence of defendant
No.4 is liable to be strike out.
6. Perused Order passed below Exh.8 dated 30.06.2016. It
appears that the plaintiff had filed application Exh.8 for directions to
defendant No.4 to produce documents. The said application is allowed
and thereby the defendant No.4 was directed to produce the documents
as per list of documents on which the defendant No.4 placed his
reliance and which are in possession of defendant No.4. The said order
is dated 30.06.2016. It appears from the Chamber Summons and
affidavit in support of Chamber Summons dated 18.01.2018 that date
of order is mentioned 30.06.2015. Date should have mentioned
30.06.2016.
7. It is contention of the plaintiff that defendant No.4 did not
comply the order passed below Exh.8 dated 30.06.2016 therefore,
defence of defendant No.4 be strike out.
8. It is contention of defesndant No.4 that this Chamber
Summons is filed after filing evidence affidavit by the plaintiff and case
was posted for cross-examination of plaintiff. This Chamber Summons
is filed to delay the proceeding. Defendant No.4 complied the said
Order dated 30.06.2016 and therefore, Chamber Summons be
dismissed.
9. In brief, it is contention of defendant No.1 to 3 that
defendant No.4 was directed to produce certain documents and
accordingly defendant No.4 produced the documents as per the list of
documents which was marked as Exh.10 by the Court. It is also
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recorded in the Order dated 03.03.2017 passed below Exh.13 that
defendant No.4 complied the Order passed below Exh.8 dated
30.06.2016. Therefore, there is no substance in this Chamber
Summons. Hence, Chamber Summons be dismissed.
10. Perused Order passed below Exh.8 dated 30.06.2016.
It’s operative order runs as under:
ORDER
1. Application Exh.8 allowed.
2. Defendant No.4 is directed to produce the
documents as per the list of documents on which the
defendant No.4 placed reliance and which are in
possession of defendant No.4.
3. Application Exh.8 is dispossed of accordingly.
11. Perused Order passed below Exh.13 dated 03.03.2017.
Plaintiff had filed application Exh.13 for permission to file additional
evidence affidavit and additional documents. The said application is
rejected on 03.03.2017. It is mentioned in the Order that defendant
No.4 was directed to produce documents as per list of documents as per
order dated 30.06.2016 passed below application Exh.8 accordingly
defendant No.4 produced documents as per list of documents Exh.10.
12. Para No.3 and 4 of Order passed below Exh.13 dated
03.03.2017 runs as under:
“Record reflects that the plaintiff filed an application below
Exh.8 for production and inspection of documents on 22.02.2016 prior
to filing evidence affidavit. An application (Exh.8) was allowed on
30.06.2016 and defendant No.4 was directed to produce the documents
as per the list of the documents. Accordingly, defendant No.4 produced
the documents as per the list of documents below Exh.10.
After production of the documents by defendant No.4 as
stated above, the plaintiff filed the evidence affidavit of Mrs. Sabita A.
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Kedia (P.W.1) at Exh.11 and filed the compilation of documents at
Exh.12. Today the matter is posted for admission/denial of the
documents.”
13. Perused affidavit in reply of defendant No.4 filed on
29.11.2018. The copies of documents ordered below Application Exh.8
dated 30.06.2016 are annexed with the reply of defendant No.4.
14. Perused List of documents Exh.18 the then Presiding
Officer has already observed in Order passed Exh.13 dated 03.03.2017
that defendant No.4 has already complied the order passed below Exh.8
dated 30.06.2016.
15. The Learned Advocate appearing for plaintiff relied upon
following citations:-
i. In the case of Karamshi Jethabhai Somayya Vs. State of
Bombay AIR 1964 Supreme Court 1714. It is held it is
duty of a private party to a litigation to place all the
relevant matters before the Court, a higher responsibility
rests upon the Government not to withhold such
documents from the Court.
ii. In the case of Shri Jawahar s/o. Radhakrishna Khandelwal
Vs. Shri Rajendra s/o. Tanbaji Kalambe, 2016 ALL MR (Cri)
3960. Application for production of documents was
rejected on the ground that documents are not relevant
and they are inadmissible being photocopies. It is held
Magistrate shall consider the relevance and admissibility of
documents after giving an opportunity to the petitioner to
prove the same.
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iii. In the case of S.P. Chengalvaraya Naidu Vs. Jagannath and
Ors., AIR 1994 Supreme Court 853. It is held with holding
of vital document relevant to litigantion is fraud on Court.
iv. In the case of Atul Dnyaneshwar Kharade Vs. Adarsh
Nagari Sahakari Patsanstha 2015(6) Mh.L.J.938. It is held
if an application for inspection and production of
documents is filed and those documents are necessary for
adjudication of issue so raised, then such opportunity
should be granted.
16. Than Presiding Officer of the Court has already observed in
the Order dated 03.03.2017 passed below application Exh.13 that
defendant No.4 coplied the order passed below Exh.8 dated 30.06.2016
by producing documents vide list of documents Exh.10.
17. Perused affidavit in reply of defendant No.4. It appears
that defendant No.4 also filed copies of the said documents alongwith
affidavit in reply. Therefore, I am of the considered view that there is
no substance in prayer of striking of defence. I record my findings to
point No.1 in the negative and to point No.2 Chamber Summons is
dismissed as per final order and proceed to pass the following order.
ORDER
Chamber Summons No.240/18 in Suit No.3021/12 is hereby dismissed
as under :
1. The Chamber Summons is dismissed.
2. Parties to bear their own costs.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 09/09/2020 City Civil Court, Gr. MUMBAI
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Dictated on : 09/09/2020.
Transcribed on : 09/09/2020.
Signed on : 09/09/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09/09/2020. at 03.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 09/09/2020.
Judgment/order signed by P.O. on 09/09/2020.
Judgment/order uploaded on 09/09/2020.
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